Push in Massachusetts for a Death Penalty

By PAM BELLUCK

Published: September 23, 2003

BOSTON, Sept. 22—
Bucking the national pattern of efforts by states and juries to rein in the use of the death penalty, Gov. Mitt Romney of Massachusetts said today that he had assembled a panel of experts to help him develop a law that would institute capital punishment in Massachusetts.

The governor and the lieutenant governor, Kerry Murphy Healey, said the panel, composed of legal and forensic experts from Massachusetts and elsewhere, would be asked to help write a bill that would avoid the mistakes that have led in several states to the convictions of defendants later found to be innocent.

''I really am looking for a standard of certainty,'' Governor Romney said in an interview. ''That's why I've asked this panel of experts to determine if a legal and forensic standard can be crafted to assure us that only the guilty will suffer the death penalty. I believe it can be.''

Massachusetts is one of 12 states without the death penalty, having abolished it in 1984. The state has not executed anyone since 1947.

A succession of governors over the last 12 years, all Republican like Mr. Romney, have tried to reinstate capital punishment. The closest the state came was in 1997, when, fueled by outrage about the rape and murder of a 10-year-old boy, a death-penalty bill failed on a tie vote in the State House of Representatives.

Since then, sentiment against the death penalty has grown, with the last bill losing in 2001 by 34 votes in the House. These days, death-penalty backers in the legislature acknowledge that they are outnumbered.

In an interview, Ms. Healey, who is a criminologist, said many lawmakers here and across the country shared a wariness toward capital punishment.

''The tide really has turned somewhat,'' she said. ''Because of increasing forensic evidence and exonerations of inmates, people are really not satisfied with the quality of death-penalty legislation. Even some proponents of the death penalty are concerned about proposing legislation, or using existing legislation.''

But, Ms. Healey said, ''it is very timely to be talking about how to recraft the death penalty at a time when flaws in existing legislation are being revealed so broadly. We need to reconsider whether or not death-penalty legislation is viable, and the governor and I believe it is viable and necessary.''

Experts on the death penalty said the governor's desire to re-establish capital punishment in Massachusetts appeared to be swimming against the national tide. In 2000, Gov. George Ryan of Illinois imposed a moratorium on the death penalty in his state and this year granted clemency or a shortened sentence to all 167 inmates on its death row.

As more than 100 people sentenced to death have been exonerated across the nation, other states have abridged or considered abridging the use of the death penalty.

Juries in state and federal cases alike have also grown reluctant to impose the death penalty. Prosecutors in many states have hesitated to seek capital punishment because of the long odds of getting a death sentence and the high cost of trying those cases. In 2001, the number of death row inmates nationally fell for the first time in a generation.

''It's a funny time to be taking such a step,'' said James Liebman, a law professor at Columbia University, said of Governor Romney's move. ''This is a very, very deeply embedded trend. It's not legislators only, it's prosecutors and jurors. The number of death sentences in the last five years has dropped by half. What we're seeing is a very deep-seated, very spread-out reaction against using the death penalty, where five years ago it would have been used.''

Jamie Orenstein, a former federal prosecutor, said that if Massachusetts adopted the death penalty, ''it will certainly have national reverberations.''

Any capital punishment bill that any state adopts now, Mr. Orenstein said, would act as a precedent for other states and would ''set back the cause of those who want to say there's a growing consensus against the death penalty as a whole.''

Governor Romney said he was starting to assemble the bill and expected to introduce it early next year to fulfill a promise made while running for governor last year.

Mr. Romney said he would instruct the committee to develop narrow legislation focusing on three categories of homicides: those associated with terrorism; those involving the killing of police officers, prosecutors, judges or trial witnesses; and ''heinous crimes'' like multiple killings or murders of extreme brutality.

To prevent mistakes, he said, he expected that the legislation would stipulate that ''there would always be physical evidence'' tying the defendant to the crime, unless the defendant confessed. ''What I would not want is where somebody is looking at capital punishment based on circumstantial evidence, or even eyewitness accounts,'' Mr. Romney said.

Most experts agree that the more specific and narrower the statute, the fewer opportunities for errors in its application. But narrowing the scope could present other quandaries. Mr. Orenstein asked what would happen if there were two defendants in a murder case, and the burden of a death penalty law was met for only one. Mr. Liebman cited the case of New York, which adopted capital punishment eight years ago with a narrowly defined law, but has since tried few death penalty cases.

''Massachusetts needs to answer is it worth the resources and trouble that's required to do it right,'' Mr. Liebman said, ''because doing it right is expensive and means that you will actually impose the death penalty quite infrequently at considerable cost.''

The governor's 11-member council includes the United States attorney here; officials in charge of the state and Boston crime laboratories; a former state court judge; a law professor; and forensic scientists.

A co-chairman of the council, Dr. Frederick R. Bieber, a medical geneticist at the department of pathology at Brigham and Women's Hospital in Boston, said he was surprised to be invited to join because ''my own views on capital punishment are equivocal at best.''

The other co-chairman, Joseph L. Hoffmann, a professor at Indiana University Law School, has advised other states on the death penalty and described himself as having no ''moral opposition'' to it.

State Representative James E. Vallee, a death-penalty supporter who is chairman of the House criminal justice committee, said he welcomed the governor's bill, but thought it was likely to be a tough sell.

''The legislature I believe is probably opposed to it,'' Mr. Vallee said, adding that the wave of exonerations had made him more ''guarded'' in scrutinizing any death-penalty legislation that might come before his committee. ''Probably on the House side, the numbers are fairly strongly opposed to the death penalty.''

Mr. Romney said: ''I'll start by making the best possible statute. Step 2 is to gather such public support that the legislators follow their lead.''